oversight

Unaccompanied Children: Agency Efforts to Identify and Reunify Children Separated from Parents at the Border

Published by the Government Accountability Office on 2019-02-07.

Below is a raw (and likely hideous) rendition of the original report. (PDF)

                             United States Government Accountability Office
                             Testimony
                             Before the Subcommittee on Oversight
                             and Investigations, Committee on
                             Energy and Commerce, House of
                             Representatives
                             UNACCOMPANIED
For Release on Delivery
Expected at 10:30 a.m. ET
Thursday, February 7, 2019

                             CHILDREN
                             Agency Efforts to Identify
                             and Reunify Children
                             Separated from Parents
                             at the Border
                             Statement of Kathryn A. Larin, Director, Education,
                             Workforce, and Income Security and

                             Rebecca Gambler, Director, Homeland Security and
                             Justice




GAO-19-368T
                                                February 7, 2019

                                                UNACCOMPANIED CHILDREN
                                                Agency Efforts to Identify and Reunify Children
                                                Separated from Parents at the Border
Highlights of GAO-19-368T, a testimony
before the Subcommittee on Oversight and
Investigations, Committee on Energy and
Commerce, House of Representatives




Why GAO Did This Study                          What GAO Found
On April 6, 2018, the Attorney General          Department of Homeland Security (DHS) and Department of Health and Human
issued a memorandum on criminal                 Services (HHS) officials GAO interviewed said the agencies did not plan for the
prosecutions of immigration offenses.           potential increase in the number of children separated from their parent or legal
According to HHS officials, this                guardian as a result of the Attorney General’s April 2018 “zero tolerance” memo
resulted in a considerable increase in          because they were unaware of the memo in advance of its public release. The
the number of minor children whom               memo directed Department of Justice prosecutors to accept for criminal
DHS separated from their parents after          prosecution all referrals from DHS of offenses related to improper entry into the
attempting to cross the U.S. border             United States, to the extent practicable. As a result, parents were placed in
illegally. On June 20, 2018, the
                                                criminal detention, and their children were placed in the custody of HHS’s Office
President issued an executive order
                                                of Refugee Resettlement (ORR). DHS and ORR treated separated children as
directing that alien families generally
be detained together, and on June 26,
                                                unaccompanied alien children (UAC)—those under 18 years old with no lawful
2018, a federal judge ordered the               immigration status and no parent or legal guardian in the United States available
government to reunify separated                 to provide care and physical custody.
families. DHS is responsible for the            Prior to April 2018, DHS and HHS did not have a consistent way to indicate in
apprehension and transfer of UAC to             their data systems children and parents separated at the border. In April and July
HHS. HHS is responsible for                     2018, U.S. Customs and Border Protection’s Border Patrol and ORR updated
coordinating UAC placement and care.            their data systems to allow them to indicate whether a child was separated.
                                                However, it is too soon to know the extent to which these changes, if fully
This testimony discusses DHS and
                                                implemented, will consistently indicate when children have been separated from
HHS (1) planning efforts related to the
Attorney General’s April 2018 memo,             their parents, or will help reunify families, if appropriate.
(2) systems for indicating children were        In response to a June 26, 2018 court order to quickly reunify children separated
separated from parents, and (3)                 from their parents, HHS determined how many children in its care were subject
actions to reunify families in response         to the order and developed procedures for reunifying these families. As of
to the June 2018 court order. It is             September 2018, the government identified 2,654 children in ORR custody who
based on a report GAO issued in                 potentially met reunification criteria, which does not include separated children
October 2018. This testimony also
                                                released to sponsors prior to the June 2018 court order. On July 10, 2018, the
includes updated data reported by the
                                                court approved reunification procedures for the parents covered by the June
government on the number children
separated from their parents subject to
                                                2018 court order. This July 10, 2018 order noted that ORR’s standard
the court’s reunification order and the         procedures used to release UAC from its care to sponsors were not meant to
number of those children in ORR                 apply in this circumstance, in which parents and children who were apprehended
custody as of December 11, 2018.                together were separated by government officials. Since GAO’s October 2018
                                                report, the government identified additional children separated from parents
What GAO Recommends                             subject to the court’s reunification order and released additional children from its
                                                custody (see figure).
GAO recommended in 2015 that DHS
and HHS improve their process for               Number of Possible Children of Potential Class Members Who Were Released from Office of
transferring UAC from DHS to HHS                Refugee Resettlement (ORR) Custody and Remaining in ORR Custody as of September 10,
custody. DHS and HHS concurred and              2018 and December 11, 2018
have taken action, but have not fully
implemented the recommendation.




View GAO-19-368T. For more information,
contact Kathryn A. Larin at (202) 512-7215 or
                                                Note: GAO did not independently verify the accuracy of these data.
larink@gao.gov or Rebecca Gambler at (202)
512-8777 or gamblerr@gao.gov.
                                                                                                 United States Government Accountability Office
Letter
         Letter




         February 7, 2019

         Chair DeGette, Ranking Member Guthrie, and Members of the
         Subcommittee:

         Thank you for the opportunity to discuss the efforts of the Department of
         Homeland Security (DHS) and Department of Health and Human
         Services (HHS) to plan for and respond to family separations that
         occurred during the spring of 2018 at the southwest border. On April 6,
         2018, the Attorney General issued a memorandum on criminal
         prosecutions of immigration offenses, which officials said resulted in a
         considerable increase in the number of minor children whom DHS
         separated from their parents or legal guardians after attempting to cross
         the U.S. border illegally. 1 On June 20, 2018, the President issued an
         executive order directing that alien families generally be detained
         together, 2 and on June 26, 2018, a federal judge ordered the government
         to reunify certain separated families. 3

         My statement today will focus on (1) DHS and HHS planning efforts
         related to the Attorney General’s April 2018 memo, (2) DHS and HHS
         systems for indicating children were separated from parents, and (3) DHS
         and HHS actions to reunify families in response to the June 2018 court
         order. My statement is based on the findings from our October 2018
         report, which provides a detailed description of our methodology. 4 To
         obtain updated data on the number of children affected by the federal
         court order to reunify families, we reviewed the December 12, 2018 joint

         1
          Memorandum for Prosecutors Along the Southwest Border. Zero-Tolerance for Offenses
         Under 8 U.S.C. § 1325(a). Office of the Attorney General. April 6, 2018 (referred to in this
         testimony statement as the “April 2018 memo”). Specifically, the memo directed “each
         United States Attorney’s Office along the Southwest Border—to the extent practicable,
         and in consultation with DHS—to adopt immediately a zero-tolerance policy for all
         offenses referred for prosecution under section 1325(a).” See GAO, Unaccompanied
         Children: Agency Efforts to Reunify Children Separated from Parents at the Border,
         GAO-19-163 (Washington, D.C.: October 9, 2018) for more information on 8 U.S.C. §
         1325(a).
         2
          Exec. Order No. 13841, 83 Fed. Reg. 29,435 (June 25, 2018). Although the executive
         order was announced on June 20, 2018, it was not published in the Federal Register until
         June 25, 2018.
         3
          Ms. L. v. U.S. Immigration & Customs Enforcement (Ms. L. v. ICE), No. 18-0428 (S.D.
         Cal. June 26, 2018) (order granting preliminary injunction).
         4
          GAO, Unaccompanied Children: Agency Efforts to Reunify Children Separated from
         Parents at the Border, GAO-19-163 (Washington, D.C.: October 9, 2018).




         Page 1                                                                          GAO-19-368T
                            status update. The work upon which this statement is based was
                            conducted in accordance with generally accepted government auditing
                            standards. Those standards require that we plan and perform the audit to
                            obtain sufficient, appropriate evidence to provide a reasonable basis for
                            our findings and conclusions based on our audit objectives.



Background
Family Separations at the   According to DHS and HHS officials, DHS has historically separated a
Southwest Border            number of children from accompanying adults at the border and
                            transferred them to HHS custody, but these separations occurred only in
                            certain circumstances. For example, DHS might separate families if the
                            parental relationship could not be confirmed, if there was reason to
                            believe the adult was participating in human trafficking or otherwise a
                            threat to the safety of the child, or if the child crossed the border with
                            other family members such as grandparents without proof of legal
                            guardianship. HHS has traditionally treated these children as
                            unaccompanied alien children (UAC)—children who (1) have no lawful
                            immigration status in the United States, (2) have not attained 18 years of
                            age, and (3) have no parent or legal guardian in the United States or no
                            parent or legal guardian in the United States available to provide care and
                            physical custody. 5

                            The Attorney General’s April 2018 memorandum, also referred to as the
                            “zero tolerance” policy, directed Department of Justice (DOJ) prosecutors
                            to accept all referrals of all improper entry offenses from DHS for criminal
                            prosecution, to the extent practicable. According to DHS officials, in
                            implementing the April 2018 memo, DHS’s U.S. Customs and Border
                            Protection (CBP) began referring a greater number of individuals
                            apprehended at the border to DOJ for criminal prosecution, including
                            parents who were apprehended with children. 6 In these cases, referred
                            parents were placed into U.S. Marshals Service custody and separated
                            from their children because minors cannot remain with a parent who is



                            5
                            6 U.S.C. § 279(g)(2).
                            6
                            When we use the term “children,” we are referring to minor children under the age of 18.
                            When we use the term “parent,” we are referring to parents and legal guardians.




                            Page 2                                                                      GAO-19-368T
arrested on criminal charges and detained by U.S. Marshals Service. 7 In
cases where parents were referred to DOJ for criminal proceedings and
separated from their children, DHS and HHS officials stated they treated
those children as UAC. In such cases, DHS transferred these children to
the custody of HHS’s Office of Refugee Resettlement (ORR) and ORR
placed them in one of their shelter facilities, as is the standard procedure
for UAC.

The President’s executive order issued on June 20, 2018, directed,
among other things, that the Secretary of Homeland Security maintain
custody of alien families during any criminal improper entry or immigration
proceedings involving their family members, to the extent possible. This
order stated that the policy of the administration is to maintain family
unity, including by detaining alien families together where appropriate. In
addition, on June 26, 2018, a federal judge ruled in the Ms. L. v. ICE case
that certain separated parents must be reunited with their minor children
(referred to in this testimony statement as the “June 2018 court order”). 8
In this case, the American Civil Liberties Union filed a federal lawsuit on
behalf of certain parents (referred to as class members) who had been




7
 While DOJ and DHS have broad authority to detain adult aliens, children, whether
accompanied or unaccompanied, must be detained according to standards established in
the Homeland Security Act of 2002 (Pub. L. No. 107-296, tit. IV, subtit. D, § 441, 116 Stat.
2135, 2192) the Trafficking Victims Protection Reauthorization Act of 2008 (Pub. L. No.
110-457, 112 Stat. 5044), and the 1997 Flores v. Reno Settlement Agreement (Flores
Agreement) (Stipulated Settlement Agreement, Flores v. Reno, No. 85-4544 (C.D. Cal.
Jan. 17, 1997)).
8
 For parents covered by the June 2018 order, the court ruled that the government may not
detain parents apart from their minor children, subject to certain exceptions; that parents
must be reunited with their minor children under 5 years of age within 14 days of the
order; and parents must be reunited with their minor children age 5 and over within 30
days of the order. The order required these reunifications unless there is a determination
that the parent is unfit or presents a danger to the child, or the parent affirmatively,
knowingly, and voluntarily declines to be reunited with the child. Ms. L. v. U.S. Immigration
& Customs Enforcement (Ms. L. v. ICE), No. 18-0428 (S.D. Cal. June 26, 2018) (order
granting preliminary injunction).




Page 3                                                                          GAO-19-368T
                      separated from their children. 9 As of September, 10, 2018, the
                      government had identified 2,654 children of potential class members in
                      the Ms. L. v. ICE case, which we discuss in greater detail later in this
                      statement. As of January 31, 2019, this litigation was ongoing.


Care and Custody of   Under the Homeland Security Act of 2002, responsibility for the
Unaccompanied Alien   apprehension, temporary detention, transfer, and repatriation of UAC is
                      delegated to DHS, 10 and responsibility for coordinating and implementing
Children (UAC)
                      the placement and care of UAC is delegated to HHS’s ORR. 11 CBP’s U.S.
                      Border Patrol (Border Patrol) and Office of Field Operations (OFO), as
                      well as DHS’s ICE, apprehend, process, temporarily detain, and care for
                      UAC who enter the United States with no lawful immigration status. 12
                      ICE’s Office of Enforcement and Removal Operations (ERO) is generally
                      responsible for transferring UAC, as appropriate, to ORR, or repatriating
                      them to their countries of nationality or last habitual residence. Under the
                      William Wilberforce Trafficking Victims Protection Reauthorization Act of
                      2008 (TVPRA), UAC in the custody of any federal department or agency,
                      including DHS, must be transferred to ORR within 72 hours after
                      determining that they are UAC, except in exceptional circumstances. 13 In
                      addition, the 1997 Flores v. Reno Settlement Agreement (Flores
                      Agreement) sets standards of care for UAC while in DHS or ORR

                      9
                       This case was filed as a class action—class referring to individuals with a shared legal
                      claim who are covered by the lawsuit. Ms. L. v. ICE, No. 18-0428 (S.D. Cal. March 9,
                      2018) (amended complaint). The court certified the following class: “All adult parents who
                      enter the United States at or between designated ports of entry who (1) have been, are, or
                      will be detained in immigration custody by the DHS, and (2) have a minor child who is or
                      will be separated from them by DHS and detained in ORR custody, ORR foster care, or
                      DHS custody, absent a determination that the parent is unfit or presents a danger to the
                      child.” Ms. L. v. ICE, No. 18-0428 (S.D. Cal. June 26, 2018) (order granting in part
                      plaintiffs’ motion for class certification). In that order, the court also noted that the class
                      “does not include migrant parents with criminal history or communicable disease, or those
                      who are in the interior of the United States or subject to the [June 20 executive order].”
                      10
                        Pub. L. No. 107-296, tit. IV, subtit. D, § 441, 116 Stat. 2135, 2192 (codified at 6 U.S.C. §
                      251). Repatriation is defined as returning unaccompanied children to their country of
                      nationality or last habitual residence.
                      11
                        Pub. L. No. 107-296, tit. IV, subtit. D, § 462, 116 Stat. 2135, 2202 (codified at 6 U.S.C. §
                      279).
                      12
                        Border Patrol agents apprehend UAC between official U.S. ports of entry, and Office of
                      Field Operations officers encounter these children at ports of entry. ICE apprehends UAC
                      within the United States at locations other than borders or ports of entry.
                      13
                          8 U.S.C. § 1232(b)(3).




                      Page 4                                                                           GAO-19-368T
custody, including, among other things, providing drinking water, food,
and proper physical care and shelter for children. 14

In 2015 and 2016, we reported on DHS’s and HHS’s care and custody of
UAC, including the standard procedures that DHS follows to transfer UAC
to ORR. 15 ORR’s UAC policy guide states that the agency requests
certain information from DHS when DHS refers children to ORR,
including, for example, how DHS determined the child was
unaccompanied. 16 Depending on which DHS component or office is
referring the child to ORR, DHS may provide information on the child in
an automated manner directly into ORR’s UAC Portal—the official system
of record for children in ORR’s care—or via email. 17

ORR has cooperative agreements with residential care providers to
house and care for UAC while they are in ORR custody. The aim is to
provide housing and care in the least restrictive environment
commensurate with the children’s safety and emotional and physical
needs. 18 In addition, these care providers are responsible for identifying
and assessing the suitability of potential sponsors—generally a parent or
other relative in the country—who can care for the child after the child
leaves ORR custody. 19 Release to a sponsor does not grant UAC legal
14
  Stipulated Settlement Agreement, Flores v. Reno, No. 85-4544 (C.D. Cal. Jan. 17,
1997).
15
 GAO, Unaccompanied Alien Children: Actions Needed to Ensure Children Receive
Required Care in DHS Custody, GAO-15-521 (Washington, D.C.: July 14, 2015) and
GAO, Unaccompanied Children: HHS Can Take Further Actions to Monitor Their Care,
GAO-16-180 (Feb. 5, 2016: Washington, D.C.).
16
  Office of Refugee Resettlement, ORR Guide: Children Entering the United States
Unaccompanied, accessed August 23, 2018,
https://www.acf.hhs.gov/orr/resource/children-entering-the-united-states-unaccompanied.
17
  As of August 2018, not all DHS offices were entering information directly into ORR’s
UAC Portal. CBP officials also told us that its officials included biographical information
and details regarding the apprehension of the alien, in packets provided to ORR when
UAC are transferred to ORR custody. In cases in which the information is sent via email,
the ORR Intakes Team must manually enter it into the UAC Portal. The ORR Intakes
Team is made up of ORR headquarter staff who receive referrals of UAC from federal
agencies and make the initial placement of these children in ORR facilities.
18
   ORR is required to promptly place UAC in its custody in the least restrictive setting that
is in the best interest of the child. 8 U.S.C. § 1232(c)(2)(A).
19
  Qualified sponsors are adults who are suitable to provide for the child’s physical and
mental well-being and have not engaged in any activity that would indicate a potential risk
to the child. See 8 U.S.C. § 1232(c)(3).




Page 5                                                                           GAO-19-368T
immigration status. Children are scheduled for removal proceedings in
immigration courts to determine whether they will be ordered removed
from the United States or granted immigration relief. 20

Once at the shelter, shelter staff typically conduct an intake assessment
of the child within 24 hours, and then are to provide services such as
health care and education. According to ORR’s UAC policy guide, shelter
staff are responsible for meeting with the child to begin identifying
potential sponsors, which can include parents. To assess the suitability of
potential sponsors, including parents, ORR care providers collect
information from potential sponsors to establish and identify their
relationship to the child. 21 For example, the screening conducted of
potential sponsors includes various background checks and in June 2018,
ORR implemented increased background check requirements that were
outlined in an April 2018 memorandum of agreement with DHS. These
changes required ORR staff to collect fingerprints from all potential
sponsors, including parents, and all adults in the potential sponsor’s
household and transmit the fingerprints to ICE to perform criminal and
immigration status checks on ORR’s behalf. ICE was to submit the results
to ORR, and ORR used this information, along with information provided
by, and interviews with, the potential sponsors, to assess their
suitability. 22 However, in December 2018, ORR revised its background
check policy to limit criminal and immigration status checks conducted by
ICE to the potential sponsor, unless concerns about other adult
household members are raised via a public records check, there is a
documented risk to the safety of the child, the child is particularly
vulnerable, or the case is referred for a home study.




20
  There are several types of immigration relief that may be available to these children, for
example, asylum or Special Immigrant Juvenile status. For more information, see
GAO-16-180.
21
  According to an HHS official, ORR’s process for placing UAC with sponsors is designed
to comply with the 1997 Flores Agreement, the Homeland Security Act of 2002, and
TVPRA. For more information on ORR’s process for identifying and screening sponsors,
see GAO-19-163.
22
  ORR conducts other additional background checks, such as the child abuse and neglect
checks, as part of its screening process.




Page 6                                                                          GAO-19-368T
                      According to HHS and DHS officials we interviewed, the departments did
HHS and DHS           not take specific steps in advance of the April 2018 memo to plan for
Planning for Family   family separations or a potential increase in the number of children who
                      would be referred to ORR because they did not have advance notice of
Separations           the memo. Specifically, ORR, CBP, and ICE officials we interviewed
                      stated that they became aware of the April 2018 memo when it was
                      announced publicly.

                      Though they did not receive advance notice of the April 2018 memo,
                      ORR officials stated that they were aware that increased separations of
                      parents and children were occurring prior to the April memo. According to
                      ORR officials, the percentage of children referred to ORR who were
                      known to have been separated from their parents rose by more than
                      tenfold from November 2016 to August 2017 (0.3 to 3.6 percent). In
                      addition, the ORR shelter and field staff we interviewed at four ORR
                      facilities in Arizona and Texas told us they started noticing an increase in
                      the number of children separated from their parents in late 2017 and early
                      2018, prior to the April 2018 memo. The DHS officials we interviewed
                      stated that, in some locations across the southwest border, there was an
                      increase in the number of aliens CBP referred to DOJ for prosecution of
                      immigration-related offenses after an Attorney General memo issued in
                      April 2017. 23 This memo prioritized enforcement of a number of criminal
                      immigration-related offenses, including misdemeanor improper entry. In
                      addition, CBP officials stated that there may have been an increase in
                      children separated from non-parent relatives or other adults fraudulently
                      posing as the child’s parents. 24

                      According to ORR officials, in November 2017, ORR officials asked DHS
                      officials to provide information about the increase in separated children. In
                      response, DHS officials stated that DHS did not have an official policy to
                      separate families, according to ORR officials. A few months prior to the
                      April 2018 memo, ORR officials said they saw a continued increase in
                      separated children in their care. ORR officials noted that they considered
                      planning for continued increases in separated children, but HHS
                      leadership advised ORR not to engage in such planning since DHS

                      23
                        Memorandum for All Federal Prosecutors. Renewed Commitment to Criminal
                      Immigration Enforcement. Office of the Attorney General. April 11, 2017.
                      24
                        In June 2018, DHS issued a press release noting an increase in the number of aliens
                      using children to pose as family units to gain entry into the United States in 2017 and
                      2018.




                      Page 7                                                                       GAO-19-368T
officials told them that DHS did not have an official policy of separating
families.

From July to November 2017, the Border Patrol sector in El Paso, Texas
conducted an initiative to address an increase in apprehensions of
families that sector officials had noted in early fiscal year 2017. 25
Specifically, Border Patrol officials in the sector reached an agreement
with the District of New Mexico U.S. Attorney’s Office to refer more
individuals who had been apprehended, including parents who arrived
with minor children, for criminal prosecution. Prior to this initiative, the
U.S. Attorney’s Office in this district had placed limits on the number of
referrals it would accept from Border Patrol for prosecution of immigration
offenses. 26 According to Border Patrol officials, under this initiative, the
U.S. Attorney’s Office agreed to accept all referrals from Border Patrol in
the El Paso sector for individuals with violations of 8 U.S.C. § 1325
(improper entry by alien) and § 1326 (reentry of removed aliens),
consistent with the Attorney General’s 2017 memo directing federal
prosecutors to prioritize such prosecutions. 27 For those parents placed
into criminal custody, Border Patrol referred their children to ORR’s care
as UAC. According to a Border Patrol report on the initiative, the El Paso
sector processed approximately 1,800 individuals in families and 281
individuals in families were separated under this initiative. Border Patrol
headquarters directed the sector to end this initiative in November 2017,
and Border Patrol officials stated that there were no other similar local
initiatives that occurred prior to the Attorney General’s 2018 memo.




25
  Border Patrol divides responsibility for border security operations geographically among
sectors.
26
 According to a November 2017 Border Patrol memo, on July 6, 2017, the District of New
Mexico, Acting United States Attorney removed all restrictions imposed on referrals from
Border Patrol’s El Paso Sector.
27
   According to Border Patrol, all individuals apprehended, referred, and accepted for
prosecution were generally prosecuted for criminal immigration violations such as
improper entry by alien (8 U.S.C. § 1325) and illegal reentry of removed aliens (8 U.S.C. §
1326). According to a DHS press release issued on June 15, 2018, parents prosecuted for
illegal entry were transferred to DOJ custody for criminal proceedings, then subsequently
transferred to ICE for immigration proceedings. The press release states that any
individual subject to removal from the United States may seek asylum or other protections
available under the law, including children who, depending on the circumstances, may
undergo separate immigration proceedings.




Page 8                                                                        GAO-19-368T
                  When the April 2018 memo was released, there was no single database
DHS and HHS       with easily extractable, reliable information on family separations. DHS
Systems for       and HHS subsequently updated their data systems in the spring and
                  summer of 2018, but it is too soon to know the extent to which these
Indicating When   changes, if fully implemented, will consistently indicate when children
Children Were     have been separated from the parents or will help reunify families, if
                  appropriate. Specifically, prior to April 2018, CBP’s and ORR’s data
Separated from    systems did not include a designated field to indicate that a child was
Parents           unaccompanied as a result of being separated from his or her parent, and
                  ORR officials stated that such information was not always provided when
                  children were transferred from DHS to HHS custody. According to agency
                  officials, between April and August 2018, the agencies made changes to
                  their data systems to help notate in their records when children are
                  separated from parents.

                  Regarding DHS, CBP’s Border Patrol and OFO made changes to their
                  data systems to allow them to better indicate cases in which children
                  were separated from their parents; however, ORR officials told us in
                  September 2018, that they had been unaware that DHS had made these
                  systems changes.

                  •   According to Border Patrol officials, Border Patrol modified its system
                      on April 19, 2018, to include yes/no check boxes to allow agents to
                      indicate that a child was separated from their parent(s). 28 However,
                      Border Patrol officials told us that information on whether a child had
                      been separated is not automatically included in the referral form sent
                      to ORR. Rather, agents may indicate a separation in the referral notes
                      sent electronically to ORR, but they are not required to do so,
                      according to Border Patrol officials. While the changes to the system
                      may make it easier for Border Patrol to identify children separated
                      from their parents, ORR officials stated ORR may not receive
                      information through this mechanism to help it identify or track
                      separated children. Prior to this system modification, Border Patrol
                      agents typically categorized a separated child as an unaccompanied
                      child in its system and did not include information to indicate the child
                      had been separated from a parent.



                  28
                    Border Patrol maintains the E3 data system, which Border Patrol agents use to transmit
                  and store data collected when processing and identifying individuals apprehended at the
                  border, including children who are unaccompanied due to separation from a parent.




                  Page 9                                                                      GAO-19-368T
•    CBP’s OFO, which encounters families presenting themselves at
     ports of entry, also modified its data system 29 and issued guidance to
     its officers on June 29, 2018, to track children separated from their
     parents. 30 OFO officials have access to the UAC Portal but typically
     email this information to ORR as part of the referral request. 31
     According to OFO officials, prior to that time, OFO designated children
     separated from their parents as unaccompanied.
ORR updated the UAC Portal to include a check box for indicating that a
child was separated from his or her parents. According to ORR officials,
ORR made these changes on July 6, 2018, after the June 20 executive
order and June 2018 court order to reunify families. According to ORR
officials, prior to July 6, 2018, the UAC Portal did not have a systematic
way to indicate whether a child was designated as unaccompanied as a
result of being separated from a parent at the border. The updates allow
those Border Patrol agents with direct access to the UAC Portal to check
this box, and Border Patrol issued guidance on July 5, 2018, directing its
agents to use the new indicator for separated children in the UAC Portal
and provide the parent’s alien number in the UAC Portal when making
referrals to ORR as of July 6, 2018. 32 However, ORR officials also said
that DHS components with access to the UAC Portal are not yet utilizing
the new check box consistently.

Staff at three of the four shelters we visited in Arizona and Texas in July
and August of 2018 said that in most, but not all cases during the spring
of 2018, DHS indicated in the custody transfer information that a child had
been separated. Staff at one shelter estimated that for approximately 5
percent of the separated children in its care there was no information from
DHS indicating parental separation. In these cases, shelter staff said they
29
  OFO uses the Secure Integrated Government Mainframe Access system to collect
information about individuals in its custody.
30
  Families presenting themselves at ports of entry would typically not be in violation of 8
U.S.C. § 1325(a), which establishes criminal penalties for improper entry into the United
States. Rather, OFO officials stated that, both before and after the April 2018 memo, they
separated parents and children due to circumstances such as a parent’s criminal history
or if the parent presents a potential danger to the child.
31
 As of August 2018, OFO officials stated they had taken a phased approach to training
OFO officers on the UAC Portal, and that they had ongoing efforts to ensure OFO officers
make referrals to ORR directly in the UAC Portal.
32
  DHS and ORR officials told us that DHS components provide information on children
referred to ORR through various mechanisms such as via email to ORR’s Intakes Team or
by entering the information into the ORR’s UAC Portal directly.




Page 10                                                                        GAO-19-368T
learned about the separation from the child during the shelter’s intake
assessment. Staff at the same shelter, which cares for children ages 0 to
4, noted that intake assessments for younger children are different from
intake for older children, as younger children are unable to provide
detailed information on such issues as parental separation.

While the updates that OFO and ORR have made to their data systems
are a positive step, they do not fully address the broader coordination
issues we identified in our previous work. Specifically, we identified
weaknesses in DHS and HHS’s process for the referral of UAC. In 2015,
we reported that the interagency process to refer and transfer UAC from
DHS to HHS was inefficient and vulnerable to errors because it relied on
emails and manual data entry, and documented standard procedures,
including defined roles and responsibilities, did not exist. 33 To increase
the efficiency and improve the accuracy of the interagency UAC referral
and placement process, we recommended that the Secretaries of DHS
and HHS jointly develop and implement a documented interagency
process with clearly defined roles and responsibilities, as well as
procedures to disseminate placement decisions, for all agencies involved
in the referral and placement of UAC in HHS shelters. In response, DHS
officials told us DHS delivered a Joint Concept of Operations between
DHS and HHS to Congress on July 31, 2018, which provides field
guidance on interagency policies, procedures, and guidelines related to
the processing of UAC transferred from DHS to HHS. DHS submitted the
Joint Concept of Operations to us on September 26, 2018, in response to
our recommendation. We are reviewing the extent to which the Joint
Concept of Operations includes a documented interagency process with
clearly defined roles and responsibilities, as well as procedures to
disseminate placement decisions, for all agencies involved in the referral
and placement of unaccompanied children, including those separated
from parents at the border, in HHS shelters. Moreover, to fully address
our recommendation, DHS and HHS should implement such interagency
processes.




33
 GAO-15-521.




Page 11                                                          GAO-19-368T
                       DHS and HHS took various actions in response to the June 26, 2018,
DHS and HHS            court order to identify and reunify children separated from their parents.
Actions to Reunify     The June 2018 court order required the government to reunite class
                       member parents with their children under 5 years of age within 14 days of
Families in Response   the order, and for children age 5 and over, within 30 days of the order. 34
to the June 2018       HHS officials told us that there were no specific procedures to reunite
                       children with parents from whom they were separated at the border prior
Court Order            to the June 2018 court order. Rather, the agency used its standard
                       procedures, developed to comply with the William Wilberforce Trafficking
                       Victims Protection Reauthorization Act of 2008 (TVPRA), to consider
                       potential sponsors for unaccompanied children in their custody; if a parent
                       was available to become a sponsor, reunification with that parent was a
                       possible outcome.

                       DHS and HHS Efforts to Identify Potential Class Members. To create
                       the list of potential class members (that is, those parents of a separated
                       child covered under the lawsuit) eligible for reunification per the June
                       2018 court order, DHS and HHS officials told us that they generated the
                       list based on children who were in DHS or HHS custody on that date. As
                       a result, DHS and HHS officials told us that a parent of a separated child
                       would only be a class member if his or her child was detained in DHS or
                       HHS custody on June 26, 2018. After developing the class list, DHS and
                       HHS officials told us that they next determined whether class members
                       were eligible for reunification, as a class member could be determined
                       ineligible for reunification if it was determined that the parent was unfit or
                       presented a danger to the child.

                       Parents of children who were separated at the border but whose children
                       were released by ORR to sponsors prior to the June 2018 court order
                       were not considered class members, and according to HHS officials, the
                       department was not obligated to reunite them with the parent or parents
                       from whom they were separated. Further, HHS officials told us that they

                       34
                         Ms. L. v. ICE, No. 18-0428 (S.D. Cal. June 26, 2018) (order granting preliminary
                       injunction). The court certified the following class: “All adult parents who enter the United
                       States at or between designated ports of entry who (1) have been, are, or will be detained
                       in immigration custody by the DHS, and (2) have a minor child who is or will be separated
                       from them by DHS and detained in ORR custody, ORR foster care, or DHS custody,
                       absent a determination that the parent is unfit or presents a danger to the child.” Ms. L. v.
                       ICE, No. 18-0428 (S.D. Cal. June 26, 2018) (order granting in part plaintiffs’ motion for
                       class certification). In that order, the court also noted that the class “does not include
                       migrant parents with criminal history or communicable disease, or those who are in the
                       interior of the United States or subject to the [June 20 executive order].”




                       Page 12                                                                         GAO-19-368T
do not know how many such children separated from parents at the
border were released to sponsors prior to the order and that the court
order does not require the department to know this information.

Because there was no single database with information on family
separations, HHS officials reported using three methods to determine
which children in ORR’s custody as of June 26, 2018, had been
separated from parents at the border: 35

1. Data Reviewed by an Interagency Data Team. An interagency team
   of data scientists and analysts—led by HHS’s Office of the Assistant
   Secretary for Preparedness and Response with participation from
   CBP, ICE, and ORR—used data and information provided by DHS
   and HHS to identify the locations of separated children and parents,
   according to HHS officials. 36
2. Case File Review. HHS reported that more than 100 HHS staff
   reviewed about 12,000 electronic case files of all children in its care
   as of June 26, 2018 for indications of separation in specific sections of
   each child’s case file, such as the phrases “zero tolerance,”
   “separated from [parent/mother/father/legal guardian],” and “family
   separation.”
3. Review of Information Provided by Shelters. According to HHS
   officials, shelter staff were asked to provide lists of children in their
   care who were known to be separated from parents based on the
   shelter’s records.
On the basis of its reviews, as of September 10, 2018, the government
had identified 2,654 children of potential class members in the Ms. L. v.
ICE case. 37 Of the 2,654 children, 103 were age 0 to 4 and 2,551 were
age 5 to 17. As previously discussed, the number of children of potential
class members does not include those who were separated from parents
but released to sponsors prior to the June 2018 court order or the more

35
  For additional information on the three methods used by HHS to determine which
children had been separated from parents, see GAO-19-163.
36
  HHS officials said the Interagency Data Team was initially formed after the June 20,
2018 executive order, but shifted its focus to respond to the June 26, 2018, court order.
37
  Ms. L. v. ICE, No. 18-0428 (S.D. Cal. Sept. 13, 2018) (joint status report). According to
the status report, filed September 13, 2018, the data presented reflects approximate
numbers maintained by ORR as of at least September 10, 2018. We did not
independently verify the accuracy of these data. For the purposes of this report, we use
the term “government” to refer to the defendants in the Ms. L. v. ICE case.




Page 13                                                                         GAO-19-368T
than 500 children who were reunified with parents by CBP in late June
2018, because these children were never transferred to ORR custody. 38

As of September 10, 2018, 2,217 of the 2,654 identified children had
been released from ORR custody, according to a joint status report filed
in the Ms. L. v. ICE case. 39 About 90 percent of the released children
were reunited with the parent from whom they were separated and the
remaining children were released under other circumstances. Children
released under other circumstances could include those released to
another sponsor such as a parent already in the United States, another
relative, or an unrelated adult, or children who turned 18. Staff at one
ORR facility we visited told us they planned to release some children
under these circumstances. As of December 11, 2018, the government
had identified additional possible separated children of potential class
members for a total of 2,816. It had released 2,657 and 159 remained in
ORR custody. 40 However, the government has also reported that 79 of
the children it initially identified as separated had not been separated from




38
  Parents of children who were separated at the border but whose children were released
by ORR to sponsors prior to the June 2018 court order were not considered class
members, and according to HHS officials, the department was not obligated to reunite
them with the parent or parents from whom they were separated. Additionally, according
to CBP, following issuance of the June 2018 executive order, the agency began reunifying
children in its custody with parents, and by June 23, 2018, the agency had completed
reunification of 522 children with parents. CBP officials also reported that the agency had
reunified children and parents in its custody after the April 2018 memo and before the
June executive order. According to officials, these reunifications occurred when parents
completed court proceedings and returned to Border Patrol stations where children were
still located because HHS had not yet been able to place them.
39
  Ms. L. v. ICE, No. 18-0428 (S.D. Cal. Sept. 13, 2018) (joint status report). According to
the status report, the data presented reflects approximate numbers maintained by ORR as
of September 10, 2018.
40
  Ms. L. v. ICE, No. 18-0428 (S.D. Cal. Dec. 12, 2018) (joint status report). The
government determined that eight of these 159 children were children of Ms. L. class
members.




Page 14                                                                       GAO-19-368T
a parent. 41 Excluding those 79 children from the 2,816 total would bring
the total number of children separated to 2,737. 42

Plan for Reunifying Children with Class Member Parents Within and
Outside ICE’s Custody. The process used to reunify separated children
with their class member parents in the Ms. L. v. ICE case evolved over
time based on multiple court hearings and orders, according to HHS
officials. 43 After the June 2018 court order, HHS officials said the agency
planned to reunify children using a process similar to their standard
procedures for placing unaccompanied children with sponsors. However,
according to agency officials, the agency realized that it would be difficult
to meet the court’s reunification deadlines using its standard procedures
and began developing a process for court approval that would expedite
reunification for class members. As a result, from June 26, 2018 to July
10, 2018, the reunification process was refined and evolved iteratively
based on court status conferences, according to HHS officials. ORR field
and shelter staff we interviewed noted the impact of the continually
changing reunification process; for example, staff at one shelter told us
there were times when they would be following one process in the
morning but a different one in the afternoon.

On July 10, 2018, the court approved reunification procedures for the
class members covered by the June 2018 court order. 44 In the July 10,
2018 order that outlined these procedures, the court noted that the

41
 Ms. L. v. ICE, No. 18-0428 (S.D. Cal. Nov. 29, 2018) (joint status report).
42
  See also HHS Office of Inspector General (OIG) Issue Brief, Separated Children Placed
in Office of Refugee Resettlement Care (January 2019, OEI-BL-18-00511) (reporting a
total of 2,737 separated children). A motion was filed on December 14, 2018 to clarify the
scope of the Ms. L. class to include parents who were separated from children who were
released from ORR custody prior to June 26, 2018. Ms. L. v. ICE, No. 18-0428 (S.D. Cal.
Dec. 14, 2018) (notice of motion and motion to clarify scope of the Ms. L. class). In its
recent report, the OIG found that thousands of children may have been separated prior to
the zero-tolerance policy during an influx that began in 2017, before the accounting
required by the court, and HHS has faced challenges in identifying separated children.
HHS OIG Issue Brief, Separated Children Placed in Office of Refugee Resettlement Care
(January 2019, OEI-BL-18-00511).
43
  For more information on reunifying children and parents separated after the June 2018
court order, see GAO-19-163.
44
  See Ms. L. v. ICE, No. 18-0428 (S.D. Cal. July 10, 2018) (order following status
conference); see also Ms. L. v. ICE, No. 18-0428 (S.D. Cal. July 13, 2018) (defendants’
status report regarding plan for compliance and order following status conference); Ms. L.
v. ICE, No. 18-0428 (S.D. Cal. July 15, 2018) (notice from defendants).




Page 15                                                                        GAO-19-368T
standard procedures developed by ORR pursuant to the TVPRA were
meant to address “a different situation, namely, what to do with alien
children who were apprehended without their parents at the border or
otherwise” and that the agency’s standard procedures were not meant to
apply to the situation presented in the Ms. L. v. ICE case, which involves
parents and children who were apprehended together and then separated
by government officials. 45 The reunification procedures approved in the
Ms. L. v. ICE case apply only to reunification of class members with their
children and included determining (1) parentage and (2) whether the
parent is fit to take care of the child or presents any danger to the child. 46
Specifically:

1. Determining Parentage. Before July 10, 2018, to determine
   parentage for children ages 0 to 4, HHS officials said they initially
   used DNA swab testing instead of requiring documentation, such as
   birth certificates, stating that DNA swab testing was a prompt and
   efficient method for determining biological parentage in a significant
   number of cases. On July 10, 2018, the court approved the use of
   DNA testing “only when necessary to verify a legitimate, good-faith
   concern about parentage or to meet a reunification deadline.” HHS
   officials told us that at that point, to determine parentage, ORR relied
   on the determinations made by DHS when the family was separated
   and information ORR shelter staff had already collected through
   assessments of the children in their care. Unless there were specific
   doubts about the relationship, ORR did not collect additional
   information to confirm parentage, according to HHS officials.
2. Determining Fitness and Danger. To reunify class members, HHS
   also followed the procedures approved by the court on July 10, 2018
   for determining whether a parent is fit and whether a parent presents
   a danger to the child. HHS used the fingerprints and criminal
   background check of the parent conducted by DHS when the
   individual was first taken into DHS custody rather than requiring the

45
  See Ms. L. v. ICE, No. 18-0428 (S.D. Cal. July 10, 2018) (order following status
conference). As previously discussed, the June 2018 court order required the government
to reunite class member parents with their children under 5 years of age within 14 days of
the order, and for children age 5 and over, within 30 days of the order, absent a
determination that the parent is unfit or presents a danger to the child, or the parent
affirmatively, knowingly, and voluntarily declines to be reunited with the child. Ms. L. v.
ICE, No. 18-0428 (S.D. Cal. June 26, 2018) (order granting preliminary injunction).
46
  The specific reunification procedures varied depending on whether the parents were
inside or outside of ICE custody. For more information on DHS and HHS reunification
procedures for class members, see GAO-19-163.




Page 16                                                                       GAO-19-368T
    parent and other adults living in the household to submit fingerprints
    to ORR, as potential sponsors were typically required to do for
    unaccompanied children. 47 According to HHS officials, ORR
    personnel also reviewed each child’s case file for any indication of a
    safety concern, such as allegations of abuse by the child. HHS did not
    require fingerprints of other adults living in the household where the
    parent and child will live. HHS also did not require parents to complete
    an ORR family reunification application as potential sponsors are
    typically required to do for unaccompanied children.
The specific procedures for physical reunification varied depending on
whether the parents were inside or outside of ICE custody. DHS and HHS
took steps to coordinate their efforts to reunify children with parents who
were in ICE custody, but experienced challenges. Generally, for parents
in ICE custody, DHS transported parents to a detention facility close to
their child and HHS transported the child to the same facility. At the
facility HHS transferred custody of the child to ICE for final reunification.
HHS officials said that in some instances children had to wait for parents
for unreasonably long amounts of time and parents were transported to
the wrong facilities. In one case, staff at one shelter told us that they had
to stay two nights in a hotel with the child before reunification could occur.

According to HHS officials, for families in which the parent was released
into the interior of the United States, the reunification process involves
ORR officials and shelter staff attempting to establish contact with the
parent and determining whether the parent has “red flags” for parentage
or child safety. These determinations are based on DHS-provided
criminal background check summary information and case review of the
child’s UAC Portal records. In cases where no red flags are found, HHS
transports the child to the parent or the parent picks the child up at the
ORR shelter. For more information on DHS and HHS reunification
procedures for class member parents inside and outside ICE custody,
see GAO-19-163.




47
  As noted, in December 2018, ORR revised its background check policy to conduct
criminal and immigration status checks of adults in the potential sponsor’s home only in
certain circumstances.




Page 17                                                                       GAO-19-368T
                   Chair DeGette, Ranking Member Guthrie, and Members of the
                   Subcommittee, this concludes our prepared remarks. We would be happy
                   to answer any questions that you may have.


                   For further information regarding this testimony, please contact Kathryn
GAO Contacts and   A. Larin at (202) 512-7215 or larink@gao.gov or Rebecca Gambler at
Staff              (202) 512-8777 or gamblerr@gao.gov. Contact points for our Offices of
                   Congressional Relations and Public Affairs may be found on the last page
Acknowledgments    of this statement.

                   Individuals who made key contributions to this testimony include Kathryn
                   Bernet (Assistant Director), Elizabeth Morrison (Assistant Director), David
                   Barish (Analyst-in-Charge), Andrea Dawson, Jason Palmer, and Leslie
                   Sarapu. In addition, key support was provided by Susan Aschoff, James
                   Bennett, Sarah Cornetto, Michael Kniss, Sheila R. McCoy, Jean
                   McSween, Jan Montgomery, Heidi Nielson, and Almeta Spencer.




(103306)
                   Page 18                                                          GAO-19-368T
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